Highlights of Noteworthy Decisions

Decision 249 19 I
A. Patterson
  • Statutory interpretation (principles of)
  • Referral to Board (stress, mental)

The employer appealed a decision of the Appeals Resolution Officer confirming the worker's entitlement for traumatic mental stress resulting from an incident in April 2012.

The Vice-Chair considered whether the matter should be referred back to the Board in accordance with s. 13.1(8) of the WSIA.
Both the worker and employer submitted that the Tribunal should not refer the matter back.
The worker submitted that the modern principle of statutory interpretation requires that the s. 13.1(8) transitional provision be given a contextual interpretation, that the context of the transitional provisions is for the expanded cope of entitlement to benefits for mental stress (by way of amendment to s. 13(4) and related sections) to be given retroactive effect, that the amendments and retroactive effect were enacted for the benefit of workers and that it is not necessary to refer a claim back to the Board when the worker has already been granted entitlement for mental stress under the older more restrictive provisions.
The Vice-Chair agreed that the modern principle of statutory interpretation was applicable to interpretation of the transitional provisions but was not persuaded that the modern principle of statutory interpretation supported the worker's contention that s. 13.1(8) should apply only to worker appeals and not employer appeals. The Legislature could have enacted that pending appeals at the Tribunal should be decided in accordance with s. 13(4) as it reads at the time the Tribunal makes its decision, as it did in s. 13.1(6) for appeals pending at the Board. The Legislature could have explicitly specified in s. 13.1(8) that only worker appeals should be subject to the referral process. The Legislature could have given the Tribunal discretionary power in the referral process. However, the Legislature did not do any of those things.
The referral to the Board does cause some delay and expense to both workers and employers. However, it provides an opportunity to obtain the evidence base necessary for decisions under the new statutory provisions, evidence which the Board has the infrastructure and resources to obtain, and which may subsequently be considered by the Tribunal.
In addition to supporting the submissions of the worker, the employer also submitted that the incident in this case occurred in April 2012, prior to the retroactivity date in s. 13.1 of April 29, 2014. However, the Vice-Chair found that the accident date in April 2014 only applied to situations in which a worker had not filed a claim with the Board prior to January 1, 2018. It did not apply to claims relating to mental stress arising prior to April 2014 for which a claim was already filed.
The Vice-Chair concluded that the claim should be referred back to the Board in accordance with s. 13.1(8). Since the matter was being referred back to the Board, it was not necessary to address whether the Tribunal would have been required to apply the old or new provisions to the merits of the appeal.